Thursday, January 28, 2010

Jefferson Memorial Dance Party

On April 12, 2008 -- the eve of Thomas Jefferson's birthday -- Mary Brooke Oberwetter and seventeen of her friends gathered at the Jefferson Memorial to honor the former president, intending to do so through "expressive dance." Oberwetter, however, was stymied when shortly after beginning her celebration, Officer Kenneth Hilliard of the United States Park Police ordered her to stop dancing and leave the Jefferson Memorial. She refused, and asked Officer Hilliard the reason for his command. He did not answer, and instead arrested Oberwetter for demonstrating without a permit and interfering with an agency function.

A First Amendment challege to the arrest and regulations followed. The result? You guessed it: The memorial is a nonpublic forum and the regulation, which is "reasonable" and "viewpoint-neutral," is valid.

I have no quarrel with the result under doctrine as it now exists. But this is one of those events that demonstrates the excessive bureacratization of public spaces and the rather pitiful breathing space allowed for anything that strikes authorities as unconventional. The court concedes that as the permit regulations are written, they would prohibit a professor from delivering a lecture on Jefferson and the Bill of Rights in the same space without permission.

I wonder what Jefferson himself would think of this particular episode.